Arguing Before the Ohio Supreme Court

Last week I had my first argument before the Ohio Supreme Court. Ironically the case had nothing to do with employment law or commercial litigation, but instead arose from a post-divorce property division dispute. The issue, rather arcane, was whether a trial court’s imposition of a contempt sanction, coupled with an opportunity to purge, is a final appealable order.

This was certainly not a case I foresaw going to the Supreme Court from the beginning. Although I do not do divorce work–never have, never will–I got involved in this case when my client’s former husband filed a motion for contempt against her over some personal property that was to be his under the divorce decree. She had allegedly kept it from him, and the case became a monumental struggle over extension cords, saw blades, and other assorted “stuff”. I could not have imagined the case would end up before the Supreme Court on the question of whether the trial court’s order that she deliver 17 items of property or serve a 30 day jail sentence was one the trial court could not revisit after later taking evidence that convinced it she simply did not have the property and therefore could not return it.

The experience was a good one. Outside of the courtroom are a large conference room, a “media” room with wide-screened T.V., and a smaller conference room, in any of which attorneys can sit to go over their notes or consult with their clients before entering the courtroom. The courtroom itself was not as overwhelming and intimidating as I had imagined. While not quite intimate, it is surprisingly comfortable and pleasant. The architecture and interior design and painting create a majestic and awe-inspiring space. I found the ambiance to be formal yet relaxed.

As with any oral argument, mine was interrupted by questions from the justices, so most of my argument became a response to their inquiries. The bench seemed to be extremely “active” on our case, and they kept us for a total of about 50 minutes although the initial time allotment is 15 minutes per side, or 30 minutes total.

It is always a pleasure to argue before a panel of intelligent judges, and I’m used to arguing before three such judges in the Ohio courts of appeals. The difference this time was there were six justices instead of three (Justice Pfeiffer, the seventh, was absent due to a death in the family) and all six asked questions. The only way to prepare for such arguments is to become fully immersed in the facts, and in the applicable law, to anticipate the difficult questions the justices are likely to ask and to have answers to them, and to know what points you absolutely must get across one way or the other.

After the argument I was exhausted–not so much from the argument itself as from the late nights of preparation and the constant expenditure of mental energy thinking about the case. As usual, I thought of things later that I could have said better, or differently, and points I wish I had made more clearly and forcefully. But all in all I knew I had said what I wanted to say and got my points across. Someone once said if a trial lawyer does 80% of what she plans to do at trial, she’s done quite well. The standard for oral argument should be higher, since it is a more controlled and predictable environment, but perfection in oral argument is an aspiration, probably never a reality.

I am confident I did what I could do to give the justices what they needed to decide in my favor. Whether it will be enough to win the case and to keep my client from serving a 30-day jail sentence remains to be seen.